Can a person living with HIV immigrate to Canada?

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This is a question often heard at VIH INFO DROITS. The answer varies depending on the type of application being submitted: permanent residency, temporary residency, or application for asylum.

  1. Permanent residency                                                
    1.1 Medical examination
    1.2 The excessive demands on health or social services
    1.3 A ray of hope
  2. Temporary residence
    2.1 Short-term
    2.2 Long-term
  3. Application for asylum

1. Permanent residency

The following are the recognized categories of people eligible to apply for permanent residency: qualified workers, business people, and specified family members of a person who already has permanent resident status (for example: spouse, common-law partner, dependent children…).

1.1 Medical examination

All applicants for permanent residency in Canada over 15 years of age are required to undergo an immigration medical examination, including an HIV test.

A positive HIV test result can make it difficult for a person to immigrate permanently to Canada. Essentially, while Canadian laws and policies don’t mention HIV specifically, they do allow for an application to be refused on the grounds of medical inadmissibility.

The refusal of permanent residency on medical grounds can be justified by one of the following two criteria:

  • The person’s health condition is deemed to represent “a danger to the health or safety of the public.” However, immigration authorities no longer apply this designation to people living with HIV.1
  • The person is determined to represent “excessive demands on health or social services” in Canada.

This consideration of the risk of “excessive demand” doesn’t apply in the following circumstances:

  • If you’ve applied as a refugee.
  • If you have been sponsored as the spouse or dependent child of a Canadian citizen or permanent resident.

Consequently, in those two situations, being HIV positive would not be an obstacle to your application for permanent residency. However, you would have to sign a document authorizing immigration authorities to inform your sponsor and/or partner living in Canada of your HIV positive status. If you refused to disclose to your sponsor and/or partner living in Canada, you would then be required to withdraw your request for permanent residency.

1.2 The Excessive demands on health or social services

“Excessive demand” is used by immigration authorities to refuse permanent residency to people living with HIV on medical grounds. In concrete terms, this criteria means that Canada does not wish to spend more on health or social services for permanent resident applicants than what is already spent on average for Canadian residents.

The final assessment of the application therefore comes down to financial considerations. Given the high cost of the antiretrovirals and medical care needed by people living with HIV, those who apply to become permanent residents represent, for Immigration Canada, a potential “excessive demand on health or social services.”

It is equally important to know that the idea of “excessive demand” doesn’t look solely at the current health of the applicant, but also at their potential long-term healthcare needs. Therefore, the question that immigration authorities will ask is: will this applicant represent an excessive demand on health or social services over the course of the next ten years? The fact that a person does not require care and/or help at the time of application is irrelevant; the calculation looks beyond current costs, and assesses all foreseeable costs that a person could engender. As a result, if it is determined that you have a higher than average risk of being hospitalized or that your medical needs will become too costly in the ten years following your application, the application could be refused.

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1.3 A ray of hope

On December 31, 2009, the Federal Court made a ruling that requires the government to examine the possibility of a person subsidizing their own medical costs (through private insurance or insurance in their home country).

The Court concluded: “The ability and willingness of applicants to defray the cost of their out-patient prescription drug medication is a relevant consideration in assessing whether the demands presented by an applicant’s health condition constitute an excessive demand.”

Citizenship and Immigration Canada (CIC) must henceforth consider this willingness and ability to pay. Applicants will, however, be asked to supply a realistic and credible mitigation plan explaining how they intend to cover medication costs. The quality of the mitigation plan is the most important element in evaluating the applicant’s ability and intentions, and should portray the actual needs of the person concerned.

In 2010, the Federal Court made another ruling requiring the government to examine any circumstances specific to the applicant, which might prevent a simple, general conclusion from being reached. Immigration authority physicians are now required to individually evaluate each medical file, the medications needed, and the applicant’s eligibility for private insurance and/or their ability to opt-out of the drug insurance plan funded by the province or territory where the applicant intends to reside.

For this reason, a mitigation plan is critical for immigration candidates living with HIV.

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2. Temporary residence

2.1 Short-term temporary resident visa (- 6 months)

Temporary resident visa applicants are generally not eligible for provincial healthcare plans (hospital or drug). As a result, in most cases, there is no risk that the applicant will represent “excessive demand on health or social services.”

So, contrary to permanent residency, if you apply for a temporary resident visa (- 6 months), you would only have to undergo a medical exam if you intended to work in an occupation in which public health must be protected (for example: health services workers, clinical laboratory workers, elementary or high school teachers, and daycare workers).

It is still important to bear in mind that visa officers retain the discretionary right to require a medical exam at any time, if they feel it is warranted.

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2.2 Long-term temporary resident visa (+ 6 months)

Case-by-case evaluations are conducted in order to evaluate whether an applicant will represent an excessive demand on health and social services during their stay.

As a result, it’s possible that you may be asked to undergo an immigration medical examination (including an HIV test) and that your health may factor into the assessment of your visa application. This generally depends on the expected duration of your visit to Canada, your eligibility for public health insurance, and your general health.

Some applicants are always required to undergo a medical exam. These are people who:

  • Lived for six months or more in a designated country; in other words, a country in which certain transmissible diseases are more prevalent than in Canada.
  • Are coming to Canada to work in an occupation in which public health must be protected (for example: health services workers, clinical laboratory workers, elementary or high school teachers, and daycare workers).
  • Are applying for a parent or grandparent Super Visa (this is a two year visa than can be renewed five times up to a maximum duration of ten years).
  • Appear at the border or a port of entry in a state of poor health.

Once a medical exam is done (which automatically includes an HIV test), your application will be treated in much the same way as an application for permanent residency. You will need to demonstrate that you will not represent an “excessive demand” on Canadian health and social services for the duration of your visit to Canada. This means that you will have to provide a realistic and credible mitigation plan to describe how you will cover the cost of your medication and care throughout your stay in Canada, if necessary.

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3. Application for asylum

“Protected persons” and refugees must undergo a CIC medical exam, but they are exempted from inadmissibility on the grounds of representing an excessive demand on health services. Once it has been determined that an asylum-seeker meets the criteria for protection, the person may submit a request for permanent residency in Canada even if they need care and antiretroviral medication. That person would then be able to sign up for provincial health insurance just like any other permanent resident.

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1 Since 1991, Citizenship and Immigration Canada (CIC) does not consider HIV-positive status to be a danger to public health or security. See the CIC web page entitled “Danger to Public Health or Public Safety. See also article 17.2 of the CIC document “ENF4 – Port of Entry Examinations”.

VIH INFO DROITS does not provide legal advice or counsel.  The information in this document is not intended to council the public, and does not replace the services of a lawyer. Although we monitor legal developments, we cannot guarantee that the information presented here is up to date.
COCQ-SIDA cannot be held responsible for any damages resulting from the use of the information contained in this document.